CAZARES

                                                                  Interim Decision #3262


Interim Decision #3262



            In re Carlos CAZARES-Alvarez, Respondent

                         File A92 166 321 - Los Angeles

                     Decided by Board January 3, 1996
                 Decided by Attorney General June 29, 1997
                Decided by Board on remand October 8, 1997

                          U.S. Department of Justice
                   Executive Office for Immigration Review
                       Board of Immigration Appeals

(1) Following the amendment of section 212(c) of the Immigration and Nationality Act, 

(c) (1994), by section 440(d) of the Antiterrorism and Effective Death Penalty
  Act of 1996, 

 Stat. 1214, 1277, and the Attorney General’s ruling
  in Matter of Soriano, 

 (BIA 1996; A.G. 1997), an alien who is deportable
  as an aggravated felon is not eligible for section 212(c) relief.

FOR RESPONDENT: Nadine K. Wettstein, Esquire, Tucson, Arizona

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Stewart Deutsch, Appellate Counsel


                            BEFORE THE BOARD
                               (January 3, 1996)
BEFORE: Board En Banc: SCHMIDT, Chairman; VACCA, HOLMES, HURWITZ, COLE,
MATHON, and GUENDELSBERGER, Board Members. Concurring Opinions:
VILLAGELIU, Board Member; ROSENBERG, Board Member. Concurring and Dissenting
Opinion: HEILMAN, Board Member, joined by DUNNE, Vice Chairman.

HOLMES, Board Member:

   In a decision dated October 20, 1994, an Immigration Judge found the
respondent deportable under section 241(a)(2)(A)(iii) of the Immigration and
Nationality Act, 

(a)(2)(A)(iii) (1994), as an alien convicted
of an aggravated felony. The Immigration Judge also determined that the
respondent was statutorily ineligible for relief under section 212(c) of the
Act, 

(c) (1994), and ordered him deported to Mexico. The
respondent has appealed from that decision. The appeal will be sustained and
the record will be remanded. Our decision will be referred to the Attorney
General for review pursuant to 

(h)(1)(ii) (1995).

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                                 I. FACTS
   The respondent is a 38-year-old native and citizen of Mexico, who first
entered the United States in 1970. He was granted temporary resident status
on January 29, 1988, under the provisions of section 245A of the Act, 8
U.S.C. § 1255a (1988). On September 25, 1989, he adjusted his status under
section 245A to that of a lawful permanent resident.
   On May 11, 1993, the respondent was convicted of possession for sale of a
controlled substance in the Superior Court of the State of California for the
County of Tulare and was sentenced to a 2-year prison term. The Immigration and Naturalization Service thereafter charged the respondent with
deportability under section 241(a)(2)(A)(iii) of the Act, as an alien convicted
of an aggravated felony.
   At proceedings held on October 20, 1994, the Immigration Judge found
the respondent deportable as charged. The respondent requested the opportunity to apply for relief under section 212(c) of the Act. He argued that he was
eligible for such relief because he had been admitted for permanent residence
and had an unrelinquished lawful domicile of more than 7 years if one
included his years of “lawful domicile” that preceded his attainment of lawful permanent resident status. However, relying on precedent decisions of the
United States Court of Appeals for the Ninth Circuit and this Board, the
Immigration Judge found the respondent ineligible for section 212(c) relief
because he could not establish 7 years of lawful unrelinquished domicile
after his admission for lawful permanent residence. See Castillo-Felix v. INS,

 (9th Cir. 1979); Matter of Kim, 

 (BIA 1979).
   The respondent filed a timely appeal to this Board, challenging the Immigration Judge’s finding that he was statutorily ineligible for section 212(c)
relief. On appeal he argues that he has the requisite 7 years of “lawful
unrelinquished domicile” to establish eligibility for a waiver because that
phrase should not be interpreted to include only lawful domicile after admission for permanent residence.
   At oral argument on June 7, 1995, the respondent further argued that the
recent decision by the United States Court of Appeals for the Ninth Circuit in
Ortega de Robles v. INS, 

 (9th Cir. 1995), is dispositive of the
specific issue before us.
   In Ortega de Robles, the Ninth Circuit concluded that a lawful permanent
resident who gained such status under section 245A of the Act could include
time spent as a lawful temporary resident to establish the requisite 7 years of
lawful unrelinquished domicile for section 212(c) purposes.
   The Service submits that, notwithstanding the Ninth Circuit’s decision in
Ortega de Robles v. INS, supra, the Board is bound by the provisions of 

(f)(2) (1995), which in relevant part specify that relief under
section 212(c) shall be denied if an alien “has not maintained lawful permanent resident status in the United States for at least seven consecutive years

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immediately preceding the filing of the application.” The Service argues that
the Board remains bound by the regulation rather than by the Ninth Circuit’s
decision in Ortega de Robles because the court did not address this regulation
in its decision.
    The Service also asks that the Board refrain from issuing a precedent decision on this issue until the Department of Justice conducts a review of the regulation and until a court of appeals has ruled on whether the regulation
constitutes a proper interpretation of the law.

                                  II. ISSUES
   A. Should the Board of Immigration Appeals refrain from issuing a decision in this case?
   B. Is the decision of the United States Court of Appeals for the Ninth Circuit in Ortega de Robles v. INS, supra, dispositive of the question of whether
a lawful permanent resident who gained such status under section 245A of
the Act can include time spent as a lawful temporary resident to establish the
requisite 7 years of lawful unrelinquished domicile for section 212(c) purposes in cases arising within the jurisdiction of that circuit?

   III. SERVICE REQUEST TO WITHHOLD ADJUDICATION
    We deny the Service request to refrain from issuing a precedent decision on
the issues raised in this case. The Service asks that we withhold a decision on
this issue until the Department has fully reviewed 

(f)(2) and
until a court of appeals has ruled on the propriety of the statutory interpretation
reflected in that regulation. We note preliminarily that the Service has also
asked that we decline to follow the Ninth Circuit’s decision in Ortega de
Robles v. INS, supra, and instead apply the regulation. The Service’s position
is inconsistent, therefore, in that it asks us both to take a position, i.e., follow
the regulation, yet not issue a precedent decision. Nevertheless, we have evaluated the merits of withholding our adjudication of this case.
    Although the Service has asked us to refrain from issuing a decision, it has
not indicated that it has refrained from acting on cases involving this issue
while awaiting our decision. The Service has not indicated that it has advised
its trial attorneys to refrain from presenting arguments on this issue, or that
orders of deportation are being stayed in cases which might be affected by the
outcome of this case. Further, the Service has not indicated that the issue of
the validity of the regulation is currently pending in the Ninth Circuit or that a
decision has been made to pursue this issue before that court. The Service has
also failed to provide any clear indication of how it would be prejudiced if we
were to decide this case.
    Conversely, the consequences of not issuing a decision are serious. As the
respondent’s counsel indicated at oral argument, there are significant numbers of aliens, many of whom are detained at government expense, who are

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affected by the determination of this issue. Moreover, the Board has a responsibility to provide guidance on interpretations of law in a timely fashion.
   Issuance of a precedent decision should also ensure a uniform interpretation of the law, at least insofar as the Ortega de Robles decision affects cases
arising within the jurisdiction of the Ninth Circuit. We note, for example, that
although the Service’s position before this Board is that the regulation controls notwithstanding Ortega de Robles, there are recently decided and pending cases before the Board in which Service trial attorneys have requested
that cases be remanded to Immigration Judges for determinations of section
212(c) eligibility in light of Ortega de Robles. Apparently the parties to these
proceedings, including Service trial attorneys, are operating under the presumption that Ortega de Robles is controlling in the Ninth Circuit. If that presumption is incorrect, guidance should come sooner rather than later. Failure
to address this issue would not maintain a clear status quo; rather, in effect, it
would amount to a decision in favor of uncertainty and inconsistency.
   For these reasons, we deny the Service’s request to refrain from issuing a
decision in this case, and we will evaluate the case on its merits.

         IV. ELIGIBILITY FOR SECTION 212(c) WAIVER
    A waiver of inadmissibility under section 212(c) of the Act is generally
available to aliens who have been lawfully admitted for permanent residence,
who have temporarily proceeded abroad voluntarily and not under an order
of deportation, and who are returning to a lawful unrelinquished domicile of
7 consecutive years in the United States. This form of relief is also available
to lawful permanent residents, such as the respondent, who have not departed
the United States and who are in deportation proceedings. See Tapia-Acuna
v. INS, 

 (9th Cir. 1981); see also Francis v. INS, 

(2d Cir. 1976); Matter of Silva, 

 (BIA 1976). Thus, eligibility
under section 212(c) of the Act requires that an alien (1) be lawfully admitted
for permanent residence and (2) have 7 consecutive years of lawful
unrelinquished domicile.
    The respondent became a lawful permanent resident on September 25,
1989, and thus satisfies the first requirement. Only the second requirement
remains in issue. The Board long ago held that the phrase “lawful
unrelinquished domicile” in section 212(c) meant that the alien must have
maintained a domicile in the United States for 7 consecutive years after lawful admission for permanent residence. See Matter of S-, 

(BIA 1953); see also Matter of Newton, 

 (BIA 1979), and
the cases cited therein. The Ninth Circuit also held in Castillo-Felix v. INS,
supra, that for 212(c) purposes, lawful domicile begins to accrue when an
alien acquires lawful permanent resident status. Thus, the Immigration Judge
correctly ruled in October 1994 that, under then controlling precedent, the
respondent could not demonstrate his eligibility for relief under section

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212(c). However, the Ninth Circuit has now addressed the specific issue
raised by the respondent on appeal and in effect has modified its decision in
Castillo-Felix, at least as to aliens who acquired lawful temporary status
under section 245A of the Act.

             A. Application of Recent Ninth Circuit Precedent
    In evaluating whether an alien has established 7 years of lawful
unrelinquished domicile for section 212(c) purposes, the Ninth Circuit has
now held that the time an alien spends in the United States as a lawful temporary resident pursuant to section 245A of the Act can count towards the 7
years of lawful unrelinquished domicile required for section 212(c) eligibility. Ortega de Robles v. INS, supra. The court determined that Castillo-Felix
v. INS, supra, was not controlling on this issue because the reasoning in that
case had not contemplated “an amnesty program such as [section 245A of the
Act].” The court found that the reasoning in Castillo-Felix in fact supported
its conclusion that “a lawful permanent resident who gained such status
under [section 245A] by first becoming a ‘temporary’ resident established
‘lawful domicile’ for purposes of section 212(c) as of the date of his or her
application for amnesty (if a prima facie application was presented at that
time).” Ortega de Robles v. INS, supra, at 1360-61.
    The Board is bound by this holding in Ortega de Robles v. INS, supra, for
cases arising within the jurisdiction of the Ninth Circuit. The Board has consistently followed a circuit court’s precedent in cases arising within that circuit. Matter of K-S-, 

 (BIA 1993); Matter of
Anselmo, 

 (BIA 1989); Matter of Herrera, 

 (BIA 1981); Matter of Patel, 

 (BIA 1980);
Matter of Bonette, 

 (BIA 1980); Matter of Bowe, 

 (BIA 1980, 1981); Matter of Kondo, 

(BIA 1980); Matter of Cienfuegos, 

 (BIA 1979); Matter of Lok, 

 (BIA 1978); Matter of Gonzalez, 

 (BIA 1977).1
  1 We note that insofar as other circuit courts have decided the issue of whether temporary

residence constitutes domicile for section 212(c) purposes, it is our view that those holdings are
binding on cases arising within those circuits. For example, the Seventh Circuit has similarly
concluded that lawful temporary resident status under section 245A of the Act constitutes
“lawful domicile” for purposes of establishing eligibility for relief under section 212(c) of the
Act. See Avelar-Cruz v. INS, 

 (7th Cir. 1995); Castellon-Contreras v. INS, 

 (7th Cir. 1995). Other circuits have not addressed this issue specifically. See Hussein v.
INS, 

 (5th Cir. 1995); Graham v. INS, 

 (3d Cir. 1993); Melian v.
INS, 

 (11th Cir. 1993); Anwo v. INS, 

 (D.C. Cir. 1979).
Although the Second Circuit has not specifically considered whether temporary resident status
under section 245A constitutes lawful domicile for section 212(c) purposes, it held long ago
that an alien’s “lawful unrelinquished domicile” for section 212(c) purposes need not follow
admission for permanent residence. Lok v. INS, 

 (2d Cir. 1977). Conversely, the
Fourth and the Tenth Circuits have upheld the determination that lawful domicile for section

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    Thus, we find that the holding of Ortega de Robles v. INS controls the
issue before us. The respondent in this case, like the alien in Ortega de
Robles, adjusted to lawful temporary resident status pursuant to the legalization provisions of the Immigration Reform and Control Act of 1986, 

 Stat. 3359 (codified at section 245A of the Act) (“IRCA”).
The respondent’s case arises within the jurisdiction of the Ninth Circuit.
Therefore, we will follow Ortega de Robles and include the time that the
respondent spent in the United States as a temporary resident in evaluating
whether the respondent has satisfied the 7-year lawful domicile requirement
under section 212(c) of the Act.
    We are not persuaded by the Service’s argument that, despite the Ninth
Circuit’s specific holding in Ortega de Robles v. INS, we should decline to
follow that decision because of the provisions of 

(f)(2). In
this regard, we recognize that the Board and Immigration Judges (except as
to the specific authority provided by statute) only have such authority as is
created and delegated by the Attorney General. See section 103 of the Act, 

 (1994); 

, 509, 510 (1994); Matter of Anselmo,
supra, at 29-30 (BIA 1988); Matter of Medina, 

(BIA 1988). Under section 103(a) of the Act, the Attorney General has the
authority to issue regulations, and her determinations with respect to all questions of law are controlling. A regulation promulgated by the Attorney General has the force and effect of law as to this Board and Immigration Judges.
See sections 103(a), 236(a), 242(b) of the Act, 

(a), 1226(a),
1252(b) (1994); Matter of Anselmo, supra, at 29-30; Matter of Torres, 

 (BIA 1986); Matter of Valdovinos, 

(BIA 1982); Matter of Bilbao-Bastida, 

 (BIA 1966),
aff’d, 

 (9th Cir.), cert. dismissed, 

 (1969); Matter of
Tzimas, 

 (BIA 1962); 

 (1995).
    However, as noted above, we have historically followed a circuit court’s
precedent in cases originating in that circuit. And, we would not lightly
decline to follow the holdings of a circuit court. See NLRB v. Ashkenazy
Prop. Management Corp., 

 (9th Cir. 1987), cert. denied, 

 (1991); Lopez v. Heckler, 

 (9th Cir. 1984). Although we
recognize that the Ninth Circuit did not specifically address the regulation in
its decision in Ortega de Robles v. INS, supra, the court clearly held that temporary resident status acquired pursuant to the provisions of section 245A of
the Act qualifies as lawful domicile for section 212(c) purposes. Moreover,
the effect of the regulation was not raised before the court by the Government, and the Service does not argue that the relevant regulatory language
represents anything other than a codification of prior Board precedent.

212(c) purposes only begins subsequent to attainment of lawful permanent resident status. See
Michelson v. INS, 

 (10th Cir. 1990); Chiravacharadhikul v. INS, 

 (4th Cir.), cert. denied, 

 (1981).

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While, in one instance, we declined to follow a circuit court’s precedent in a
subsequent case within the circuit, the factual circumstances of that case were
unusual. See Matter of Mangabat, 

 (BIA 1972), aff’d sub
nom. Cabuco-Flores v. INS, 

 (9th Cir.), cert. denied, 

 (1973). In that case, the Solicitor General had pursued the case to the
Supreme Court, which had granted certiorari, but the case was terminated
inconclusively when the alien left the United States during the appeal process. Id.; see also Matter of Anselmo, supra, at 31-32 (explaining the unusual
circumstances that led to our decision in Matter of Mangabat). We are not
faced with a similarly unusual situation in the case before us, particularly as
the Service has now advised us both that the Attorney General has decided
not to seek further review in Ortega de Robles and that “a ‘Departmental
Review’ with a view to amendment of the regulation will be conducted.”
   Finally, we note that the Service has not provided any explicit authority
for its argument that a preexisting regulation in effect at the time of a circuit
court’s decision controls despite the circuit court’s specific contrary holding
regarding a matter addressed in the regulation. The cases cited in the Service
brief simply support the general rule that regulations have the force of law
and that courts owe deference to agency regulations. These contentions are
not in dispute.
   Thus, we are unpersuaded by the Service’s argument that we should not
follow the Ninth Circuit’s holding in Ortega de Robles v. INS, supra, regarding the specific section 212(c) eligibility issue before us today in this case
that arises within the jurisdiction of that circuit. Accordingly, we find that
this respondent’s temporary resident status should be considered when evaluating whether he has established 7 years of lawful domicile for section
212(c) eligibility purposes.

         B. Evaluation of Beginning Date for Lawful Domicile
   In order to determine whether the respondent has satisfied the requirement
of 7 years of lawful unrelinquished domicile, one must determine the point at
which lawful domicile is deemed to begin. The Ninth Circuit has resolved
this issue. In Ortega de Robles, the court held that “an alien can establish lawful domicile for purposes of § 212(c) as of the date he or she applied for
amnesty.” Ortega de Robles v. INS, supra, at 1360, (citing with approval
Castellon-Contreras v. INS, 

, 154 & n.6 (7th Cir. 1995)); see also
Hussein v. INS, 

 (5th Cir. 1995). An alien whose application for temporary resident status is approved under section 245A is adjusted
to a lawful temporary resident as of the date indicated on the application fee
receipt issued at the Service Legalization Office. 8 C.F.R. § 245a.2(s)
(1995).2
  2 The date of adjustment to lawful temporary resident status also appears on the reverse side

of the Alien Registration Receipt Card (Form I-551).

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   We are bound by the Ninth Circuit’s determination that temporary residence begins on the date that the alien files his or her application for amnesty,
and, thus, we need not discuss the merits of the respondent’s arguments that
lawful unrelinquished domicile begins any earlier than that date.3 However,
we agree that use of the date of filing of the application for legalization is logically consistent with the requirements of section 245A. Aliens applying for
legalization pursuant to that provision are required to establish that they had
resided in the United States in an unlawful status from before January 1,
1982, through the date of application. Section 245A of the Act. An alien cannot maintain both an unlawful status and still have lawful domicile, as
required by section 212(c). Therefore, the earliest date on which an alien with
temporary resident status pursuant to section 245A of the Act can have lawful
domicile is the date on which he files his application for temporary residence.
   The respondent indicates that he was granted temporary resident status on
January 29, 1988. Thus, under the standard set out in Ortega de Robles v.
INS, supra, he appears to have established his statutory eligibility for relief
under section 212(c) of the Act.

                                  V. CONCLUSION
   For the reasons discussed above, we conclude that in the Ninth Circuit,
temporary residence acquired pursuant to section 245A of the Act can be
counted towards the 7-year lawful domicile requirement of section 212(c).
Accordingly, we will enter an order remanding this case to the Immigration
Judge for a hearing on whether the respondent is eligible for section 212(c)
relief in light of Ortega de Robles v. INS, supra, and whether he merits a
favorable exercise of discretion for that relief. However, as this case raises a
novel issue regarding the effect of an Attorney General regulation in the face
of a circuit court decision that directly conflicts with the regulation without
referencing it, we will refer this case to the Attorney General for review pursuant to the provisions of 

(h)(1)(ii).
   ORDER:           The appeal is sustained and the record is remanded to
the Office of the Immigration Judge.
   FURTHER ORDER:                    The decision in this case is referred to the
Attorney General for review pursuant to the provisions of 

(h)(1)(ii).


   3 The respondent argues that because section 245A of the Act allows aliens with continuous

illegal residence in the United States prior to 1982 to obtain lawful residence, the entire period
of his residence in the United States (since 1970) was retroactively converted to lawful
domicile at the time he adjusted to lawful permanent resident status. He also argues, in the
alternative, that since section 245A grants an automatic stay of deportation from the date it took
effect, November 6, 1986, his residence in the United States since that date should qualify as
lawful domicile under section 212(c) of the Act.

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   Board Member Lauri S. Filppu did not participate in the decision in this
case.

CONCURRING OPINION: Gustavo D. Villageliu, Board Member
    I respectfully concur.
    I concur in the majority’s conclusion regarding eligibility for relief under
section 212(c) of the Immigration and Nationality Act, 

(c)
(1994), in this case. However, I disagree with the language in section IV. A.
of the decision regarding the binding effect of 

(f)(2) for the
reasons that I have discussed in Matter of Ponce De Leon, 

(BIA 1995), the companion case addressing the availability of section 212(c)
relief outside of the jurisdiction of the United States Court of Appeals for the
Ninth Circuit. I would have used this opportunity to apply Ortega de Robles
v. INS, 

 (9th Cir. 1995), nationwide, and overrule Matter of S-, 

 (BIA 1953), as obsolete, in view of subsequent statutory
enactments by Congress expanding the classes of aliens who can be lawfully
domiciled in the United States.
CONCURRING OPINION: Lory D. Rosenberg, Board Member
    I respectfully concur.
    I concur with the majority opinion in this case and, going further, concur
also in the concurring opinion of Board Member Villageliu. In addition, I
take issue with the rationale upon which Board Members Heilman and
Dunne base the dissenting portion of their separate opinion. They contend
that the fact the regulation at 

(f)(2) (1995) was not expressly
part of the deliberations of the United States Court of Appeals for the Ninth
Circuit in coming to its decision in Ortega de Robles v. INS, 

(9th Cir. 1995), diminishes the force of our holding that Ortega de Robles
controls. Their citations to Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 

 (1984), United States v. Nixon, 

 (1974), and Accardi v. Shaughnessy, 

 (1954), to the contrary, I counter that our position is both required under our own precedent
cases and sound under governing principles of statutory interpretation. In
fact, the majority opinion’s reliance upon the Ninth Circuit’s decision is
better characterized as complying with the mandate of Chevron than, as
Board Members Heilman and Dunne suggest, departing from it. I say this for
several reasons.
    I submit that the Ninth Circuit did address not only the essence of the regulation but the agency interpretation in the course of ruling for Ms. de Robles
and essentially rejecting Matter of S-, 

 (BIA 1953), and its
progeny. First, for reasons discussed in greater detail in my dissenting opinion in Matter of Ponce De Leon, 

 (BIA 1995), the regulation
in question is no more than a restatement of existing Board law, there being

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no indication or suggestion that the interpretation is drawn from anywhere
other than our decision in Matter of S-.
   Second, until Ortega de Robles, the controlling law in the Ninth Circuit
was Castillo-Felix v. INS, 

 (9th Cir. 1979), which, like Matter of
S-, supra (and the regulation which codified it), held that the requisite domicile “began when an alien was admitted for lawful permanent residence.” It
did so for two stated reasons: Because temporary residence was inconsistent
with “domicile,” and because it found the statutory language to be ambiguous
and deferred to the agency’s interpretation. Castillo-Felix v. INS, supra, at
464-66.
   Third, at issue are two distinct phrases in section 212(c) of the Immigration and Nationality Act, 

(c) (1994), the statutory section in
question which provides for the “212(c) waiver.” One is the phrase “lawful
unrelinquished domicile,” whereas the other is “lawfully admitted for permanent residence.” While the Ninth Circuit talks in terms of having deferred
previously to the agency, in fact it appears to have done so only because the
alternate reading of the language of the statute appeared at the time to amount
to an almost exclusively academic distinction (“that a small group of
nonimmigrants [such as diplomats] could conceivably qualify as ‘lawfully’
domiciled . . . does not persuade us that ‘lawful’ [in ”lawful unrelinquished
domicile"] should be defined without reference to the phrase ‘lawfully admitted for permanent residence’"). Castillo-Felix v. INS, supra, at 464.
   Under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 

 if Congress has spoken to the precise question at issue and its intent is
clear, both the court and the agency must give effect to congressional intent and
“that is the end of the matter.” 

. If Congress has not addressed the precise issue “the question for the court is whether the agency’s answer is based
upon a permissible construction of the statute.” 

 While it does not explicitly
say so in Chevron language, the Ninth Circuit has not so deferred to the construction urged by the agency (the Immigration and Naturalization Service) in Ortega
de Robles. It reads the statutory language in the context of the statute as amended
since the Immigration Reform and Control Act of 1986, 

Stat. 3359, and rejects the Service’s argument that the language in Castillo-Felix
v. INS, supra, concerning when lawful domicile time begins to accrue still
applies. In essence, in finding Castillo-Felix (which was based upon a prior
agency interpretation expressed not only 40 years ago in Matter of S-, supra, but
repeated in 

(f)(2)), to be “inapplicable to the situation now
before us,” the Ninth Circuit effectively rejects the agency interpretation and
finds that the statutory scheme no longer supports such an interpretation.1
   While Chevron often is argued to require unqualified deference to a permissible agency construction, support can be found in Supreme Court case
  1 This is consistent with the much more explicit statutory construction employed in

Castellon-Contreras v. INS, 

 (7th Cir. 1995), in which the Seventh Circuit
considered whether the terms “lawfully admitted for permanent residence” and “lawful

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Interim Decision #3262


law for a more flexible rule. For example in INS v. Cardoza-Fonseca, 

 (1987), a majority rejected such a broad, categorical application of
the Chevron language and rejected as well the agency’s position that two
standards articulated for political asylum and withholding of deportation,
respectively, were identical. In resolving an issue not dissimilar from that
before us here, the Court differentiated between two types of interpretive
questions, noting that the “narrow legal question whether two standards are
the same is, of course, quite different from the question of interpretation that
arises in each case in which the agency is required to apply either or both
standards to a particular set of facts.” 

 (emphasis added).2
   Indeed, this Board, acknowledging the principle underlying the analysis in
INS v. 

 has stated: “It is a well-established rule of
statutory construction that, in cases in which Congress includes particular
language in one section of a statute but omits [it] in another . . . , a presumption arises that the disparate inclusion and exclusion was intentional and purposeful.” Matter of Hou, 

 (BIA 1992) (citing INS
v. Cardoza-Fonseca, supra).3 As the Seventh Circuit recognized, that principle is no less controlling here, where two distinct phrases employing different
language are found in the same statutory section.




unrelinquished domicile” had two different meanings, contrary to the Service’s interpretation.
Id. at 152. The court said that under governing principles of statutory review, it first “must give
effect to the unambiguously expressed intent of Congress.” Id. at 153 (quoting Chevron,
U.S.A., Inc. v. Natural Resources Defense Council, 

). Under these
principles, the court defers to a reasonable agency interpretation only if the statute is silent or
ambiguous. Castellon-Contreras v. INS, supra, at 153 (citing Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, 

. Thus, the Seventh Circuit stated:

      Given that lawful domicile has a meaning distinct from LPR, we find no reason to equate
      the two terms. We cannot defer to the BIA’s interpretation of § 212(c) because the plain
      meaning of the term “lawful unrelinquished domicile” discussed above does not lead to
      either an absurd result, or one at odds with Congressional policy. Section 212(c) was
      designed to help ‘aliens who are likely to have established strong ties to this country,’
      something not requiring LPR status.
Castellon-Contreras v. supra, at 153 (citations omitted).
   2 In other words, where, as here, the issue is one of pure statutory construction, as Board

Members Heilman and Dunne correctly note, it is for the court to decide. Thus,
Cardoza-Fonseca demonstrates that deference may not apply equally or at all in all situations in
which an agency has taken a position on a question of construction. See also Callahan, The
Current Status of the Plain Meaning Rule, AILA Annual Conference Handbook 475 (1991).
   3 Notably our decision in Matter of Hou, supra, also refers to another canon of statutory

interpretation “uniquely applicable to the immigration laws, which requires any doubts in
construing those statutes to be resolved in favor of the alien due to the potentially drastic
consequences of deportation.” Id. at 520. This is a canon we would be well advised to apply
here as well.

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   Finally, consistent with our recognition of the principle in Matter of Hou,
and according to my interpretation of our delegated power to overrule and
invalidate the regulation (discussed extensively in my dissent in Matter of
Ponce De Leon, supra), there is nothing to prevent the Board from engaging
in that legal interpretation, applying those principles of statutory construction, and adopting our holding in this case for application nationwide.
Indeed, the Board is delegated authority by the Attorney General, among
other powers, to designate precedents which shall be binding “in all proceedings involving the same issue or issues.” 

(g) (1995). It is wholly
consistent with our mission to exercise our discretion and authority as appropriate and necessary to resolve cases coming before us, and I believe we
should do so in a manner that results in a fair and uniform application of the
law to all over whom we have jurisdiction. The preferred way to achieve such
a result would be for us to take the lead in adopting the holding of Ortega de
Robles v. INS, supra, and the rationale of Castellon-Contreras v. INS, supra,
as the administrative precedent, rather than merely to passively follow, as,
circuit by circuit, Matter of S-, supra, and ultimately the regulation are struck
down. In this regard, I note that not only is such an approach one that also is
urged by concurring Board Member Villageliu, but it is one consistent with
the rationale of agency expertise which underlies the concept of Chevron
deference.
CONCURRING IN PART AND DISSENTING IN PART: Michael J.
Heilman, Board Member, in which Mary Maguire Dunne, Vice Chairman, joined
    I respectfully concur in part and dissent in part.
    The major issue in this appeal is whether the regulation found at 

(f)(2) (1995) applies. It is true that the United States Court of Appeals
for the Ninth Circuit has held that the period of lawful temporary residence
may count toward the period of lawful unrelinquished domicile required
under section 212(c) of the Act, 

(c) (1994). The Ninth Circuit’s decisions on this matter, however, do not disclose that it took this regulation into account, indeed, do not indicate that the court was even aware of
its existence. Thus I am not prepared to go as far as the majority does in holding that the Ninth Circuit’s decisions “control” because those decisions relate
to a “matter addressed in the regulation.”
    It is not clear to me that this is even true in a broad sense. The language the
Ninth Circuit employs indicates that it saw the domicile issue as a matter of
statutory construction, and thus one over which it had de novo review authority. But domicile is not synonymous with “lawful permanent resident status,” which is what the regulation deals with. The Attorney General’s
regulation requires on its face 7 years’ lawful permanent resident status. The
Ninth Circuit did not consider whether there was a relationship between these
two distinct issues.

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Interim Decision #3262


    Furthermore, even if one were to concede an overlap between these two
issues, it would be a large leap to assume that the Ninth Circuit’s approach
would have been the same if the regulatory requirement had been added to its
deliberation. Even where de novo review is applied, a pre-existing regulatory interpretation generally imposes a deferential standard of review on the
part of the court. See Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 

 (1984) (holding that, in regard to federal
court review of agency regulations, “considerable weight should be accorded
to an executive department’s construction of a statutory scheme it is
entrusted to administer”); United States v. Nixon, 

 (1974)
(holding that so long as a regulation is in force, “the Executive Branch is
bound by it, and indeed the United States as the sovereign composed of the
three branches is bound to respect and enforce it”); Accardi v. Shaughnessy,

 (1954) (stating that regulations have “the force and effect
of law”). That clearly would have placed the matter in a different light, as the
court would have been obliged to invalidate the regulation, assuming it had
concluded that the regulation was in conflict with its interpretation of domicile. As this outcome does not appear to me to be certain, I am not prepared to
state, as the majority does, that the continuing applicability of the regulation
is resolved because the Ninth Circuit has addressed the domicile issue.
    In view of the importance of this issue, I agree that certification of this
appeal to the Attorney General is required.


             BEFORE THE ATTORNEY GENERAL
                      (June 29, 1997)
   Pursuant to 

(h)(1)(ii), the Board of Immigration Appeals has
referred to me for review its decisions in Matter of Ponce de Leon, A91 278
310 (BIA Jan. 3, 1996), and Matter of Cazares, A92 166 321 (BIA Jan. 3,
1996), both of which involved the question of an alien’s eligibility to apply
for a waiver of deportability under section 212(c) of the Immigration and
Nationality Act, 

(c). On November 25, 1996, an interim regulation that resolves the issues in these cases was published at 

 (1996) (to be codified at 8 C.F.R. pt. 212). Accordingly, I decline to
review the cases and remand them to the Board for reconsideration in light of
the promulgation of the aforementioned regulation.


              BEFORE THE BOARD ON REMAND
                      (October 8, 1997)
BEFORE: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA,
HEILMAN, HOLMES, HURWITZ, VILLAGELIU, COLE, MATHON, and
GUENDESLBERGER, Board Members. Dissenting Opinion: ROSENBERG, Board Member.

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                                                         Interim Decision #3262

SCHMIDT, Chairman:

   This case is before us on remand from an order of the Attorney General
dated June 29, 1997. In our original decision in this case, we addressed the
question of the respondent’s statutory eligibility for a waiver of inadmissibility under section 212(c) of the Immigration and Nationality Act, 

(c) (1994). Matter of Cazares, 

 (BIA 1996). We sustained the appeal and ordered the record remanded to the Immigration Judge.
We further ordered that the decision be certified to the Attorney General for
review pursuant to 

(h)(1)(ii) (1995).
   In her order, the Attorney General noted that an interim regulation that
resolved the issue in this case was published on November 25, 1996. See 

 (1996); see also 

(f)(2) (1997). The Attorney General therefore declined to review the case and remanded the record to
the Board for reconsideration in light of the regulation.
   On April 24, 1996, while this case was pending before the Attorney General, Congress amended section 212(c) of the Act by section 440(d) of the
Antiterrorism and Effective Death Penalty Act of 1996, 

 Stat. 1214, 1277 (“AEDPA”). Under the provisions of that section, an
“alien who is deportable by reason of having committed any criminal offense
covered in section 241(a)(2)(A)(iii), (B), (C), or (D), or any offense covered
by section 241(a)(2)(A)(ii) for which both predicate offenses are covered by
section 241(a)(2)(A)(i)” is not eligible for a section 212(c) waiver. Although
the Board held that this bar to relief applied only to applications filed after
April 24, 1996, the Attorney General vacated the Board’s decision and held
that the AEDPA amendment applied to cases pending on the date of its enactment. Matter of Soriano, 

 (BIA 1996; A.G. 1997).
   The respondent in this case denied deportability, but was found by the
Immigration Judge to be deportable under section 241(a)(A)(iii) of the Act, 

(a)(2)(iii) (1994). That finding was not challenged on appeal.
The respondent is therefore no longer eligible for a section 212(c) waiver.
Matter of Soriano, supra.
   In view of the Attorney General’s remand of this case and the 1996
amendment of the statute, our prior order will be vacated. Upon reconsideration, we now find that the respondent is ineligible for section 212(c) relief.
Accordingly, the appeal will be dismissed.
   ORDER:          Our decision of January 3, 1996, is vacated.
   FURTHER ORDER:                   The appeal is dismissed.
   Board Member Lauri S. Filppu did not participate in the decision in this
case.

DISSENTING OPINION: Lory D. Rosenberg, Board Member

   I respectfully dissent.

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Interim Decision #3262


   The respondent originally sought an opportunity to apply and be considered for a waiver under section 212(c) of the Immigration and Nationality
Act, 

(c) (1994), claiming that the combined period of his
domicile in the status of a lawful temporary resident and a lawful permanent
resident satisfied the requirements of the statute, but that he was precluded
from making his application for such relief from deportation. In light of our
determination that Ortega-Robles v. INS, 

 (9th Cir. 1995), is
controlling authority in cases coming before us that arise within the jurisdiction of the United States Court of Appeals for the Ninth Circuit, we held that
the decision of the Immigration Judge, issued in reliance on our prior precedent, was legally erroneous. See Matter of Cazares, 

 (BIA
1996). Since that time, the statute has been amended, and the appeal is back
before us pursuant to a remand by the Attorney General.
   We long have held that the applicable law is that which is in place at the
time of our adjudication. Matter of U-M-, 

 (BIA 1991),
aff’d, 

 (9th Cir. 1993) (citing Ziffrin v. United States, 

 (1943)). We apply this principle not only to changes in the statute occurring during the time a case is pending before us, but also to controlling
changes in interpretation of the statute occurring before issuance of a final
administrative order. See, e.g., Matter of Mogharrabi, 

(BIA 1987) (recognizing that the Supreme Court decision in INS v.
Cardoza-Fonseca, 

 (1987), rejecting our conclusion in Matter
of Acosta, 

 (BIA 1985)—that the clear probability and
well-founded fear standards articulated in the statute were not meaningfully
different—required disposition of the appeal in a 1985 case according to the
law as it existed at the time of our 1987 review).
   Nevertheless, as discussed below, I would find that the Immigration
Judge’s refusal to afford the respondent an opportunity to apply and be considered for a waiver under section 212(c) of the Act constitutes an error of
constitutional proportion, prejudicial to the respondent. Notwithstanding the
subsequent change in the statutory terms of the law, I conclude that under
these circumstances equity requires that the respondent be permitted to apply
for and have his application adjudicated under the law and standards that
existed at the time that he was precluded from applying for such relief. See
Matter of Yeung, 

 (BIA 1996, 1997) (Rosenberg, dissenting). Consequently, I dissent from the majority decision vacating our original order and dismissing the respondent’s appeal.

         I. LEGAL AND PROCEDURAL BACKGROUND
   In Matter of Cazares, supra, we decided the appeal of a respondent who
claimed to be statutorily eligible in all respects to apply for a waiver under
section 212(c) of the Act, but had been denied an opportunity to seek such
relief from deportation. We addressed the fundamental question whether a

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                                                         Interim Decision #3262


lawful permanent resident who had resided lawfully in the United States
could establish the requisite statutory period of lawful domicile by counting
time domiciled as a lawfully temporary resident and as a lawful permanent
resident for a combined period totaling more than 7 years.
    We ruled that in cases arising within the jurisdiction of the United States
Court of Appeals for the Ninth Circuit, we would follow the holding of that
court in Ortega de Robles v. INS, supra, that a lawful permanent resident,
who gained such status under section 245A of the Act, 8 U.S.C. § 1255a
(1994), by first becoming a lawful temporary resident, establishes “lawful
domicile” for purposes of eligibility under section 212(c) of the Act as of the
date the alien filed his or her application for temporary resident status. Consequently, we remanded the respondent’s case to the Immigration Judge to
allow the respondent the opportunity, which he had previously been denied
contrary to the terms of the statute as interpreted by the Ninth Circuit, to
apply for a section 212(c) waiver.
    Despite stating that Ortega de Robles v. INS, supra, is in conflict with and
does not explicitly address the provisions of 

(f)(2) (1995), a
regulation that would otherwise control the decisions of Immigration Judges
and this Board, the majority determined that the Board would follow the
holding in Ortega de Robles in cases arising within the Ninth Circuit where
the court had ruled on the specific legal issue before the Board, the Immigration and Naturalization Service did not argue that the relevant regulation represented anything other than the codification of prior Board precedent, and
the Service had advised the Board that the Attorney General had decided not
to seek further review of that court decision. Cf. Matter of Ponce de Leon 

 (BIA 1996; A.G., BIA 1997). We then certified our decision
to the Attorney General for review under 

(h)(l)(ii) (1995).
    On June 29, 1997, the Attorney General remanded the case to us, noting
that an interim regulation, purportedly dispositive of the issue on certification, had been published on November 25, 1996. See 

(1996); see also 

(f)(2) (1997). The interim regulation, which
became final on August 14, 1997, recognized that “[u]nder recent 212(c) case
law, an alien who has acquired lawful permanent resident status under section 245A of the Act may accrue the seven (7) years of lawful domicile . . .
from the date of his or her application for temporary resident status.” 

 (1997) (supplementary information). The Supplementary Information notes that two recent legislative enactments “affect the availability of
relief” under section 212(c). See Antiterrorism and Effective Death Penalty
Act of 1996, 

(d), 

, 1277
(“AEDPA”) (restricting the classes of aliens eligible for such relief); Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, Division C
of 

(c)(1)(A), 

-546, 3009-625
(“IIRIRA”)(limiting the application of the amended statute with regard to the


                                      203
Interim Decision #3262


new provision for cancellation of removal to claims raised in proceedings
commencing after April 1, 1997).

II. AGENCY ADOPTION OF THE JUDICIAL RESOLUTION OF
     THE UNDERLYING LEGAL ISSUE OF STATUTORY
                 INTERPRETATION
    In Ortega de Robles v. INS, supra, the court of appeals revisited its interpretation of the statutory language of section 212(c) in the context of the statute as amended since enactment of the Immigration Reform and Control Act
of 1986, 

 Stat. 3359, and concluded that the statutory
scheme no longer supports the interpretation it had adopted in Castillo-Felix
v. INS, 

 (9th Cir. 1979). The court found that decision, which
had adopted a prior agency interpretation, expressed 40 years ago in Matter
of S-, 

 (BIA 1953), and reiterated in 

(f)(2), to
be “inapplicable to the situation now before us.”
    In my concurrence in Matter of Cazares, supra, I noted that the court of
appeals’ conclusion in Ortega de Robles was consistent with the much more
explicit statutory construction employed in Castellon-Contreras v. INS, 

 (7th Cir. 1995), in which the United States Court of Appeals for the
Seventh Circuit considered whether the terms “lawfully admitted for permanent residence” and “lawful unrelinquished domicile” had two different
meanings, contrary to the Immigration and Naturalization Service’s interpretation. 

. The court said that under governing principles of statutory
review, it first “’must give effect to the unambiguously expressed intent of
Congress.’” 

 at 153 (quoting Chevron, U.S.A., Inc., v. Natural Resources
Defense Council, Inc., 

 (1984)). Under these principles, the
court defers to a reasonable agency interpretation only if the statute is silent
or ambiguous. Castellon-Contreras v. INS, supra, at 153 (citing Chevron,
U.S.A., Inc., v. Natural Resources Defense Council, Inc., supra, at 843-44).
Thus, the Seventh Circuit stated:
   Given that lawful domicile has a meaning distinct from LPR, we find no reason to equate the
   two terms. We cannot defer to the BIA’s interpretation of § 212(c) because the plain meaning of the term “lawful unrelinquished domicile” discussed above does not lead to either an
   absurd result, or one at odds with Congressional policy. Section 212(c) was designed to
   help “aliens who are likely to have established strong ties to this country,” something not
   requiring LPR status.

Id. (citation omitted); see also Morel v. INS, 

 (3d Cir. 1996);
White v. INS, 

 (5th Cir. 1996); Avelar-Cruz v. INS, 

(7th Cir. 1995); Melian v. INS, 

 (11th Cir. 1993); Rosario v.
INS, 

 (2d Cir. 1992).
   The regulation, published by the Attorney General while Matter of
Cazares and Matter of Ponce De Leon were pending before her and prior to
the April 1, 1997, effective date of subsequent changes to the statutory

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                                                          Interim Decision #3262


eligibility language pertaining to lawful domicile, suggests strongly that the
Attorney General wished to bring agency policy and practice into compliance with the rulings of the several federal courts that had addressed the treatment of persons first admitted for lawful temporary residence, whose status
was later adjusted to that of lawful permanent resident. It also is notable that,
in enacting the cancellation of removal provision of the IIRIRA that is widely
accepted as replacing waiver relief under former section 212(c) of the Act,
Congress crafted the terms of that provision explicitly to acknowledge the
distinction between the acquisition of lawful permanent resident status and
the period of residence after admission in any status. See section 240A(a) of
the Act, enacted at IIRIRA § 304(a)(3), 110 Stat. at 3009-587 (to be codified
at 8 U.S.C. § 1229b(a)).

      III. EFFECT OF EQUITABLE CONSIDERATIONS ON
          OTHERWISE APPLICABLE STATUTORY AND
                  REGULATORY CHANGES
    Neither the propriety, the wisdom, nor the fairness of the interpretation of
the Court of Appeals for the Ninth Circuit, or of the courts of appeals for the
Seventh, Fifth, Third, and Second Circuits, or other circuits that recognized
the distinction between the phrases “lawful domicile” and “lawful permanent
resident” status has been refuted, or even questioned, in subsequent legislative or regulatory actions. Indeed, the recent agency regulations conform to
those decisions, and the recent legislative changes affecting proceedings initiated after April 1, 1997, provide specifically for calculating time spent after
admission in any status in determining eligibility for cancellation of removal.
    The regulatory limitation that the new rule “only affects the cases not covered by these new restrictions, i.e., those commenced before April 1, 1997,”
limits its application to those applicants for a section 212(c) waiver who are
“not barred by AEDPA.” See 

 (1997) (supplementary
information). Under the circumstances of this case, however, neither this
promulgation nor the enactment of the AEDPA expressly mandates the vacation of our original order and dismissal of the respondent’s appeal on remand
from the Attorney General.
    Rather, I believe that, given our holding that an erroneous legal determination derailed the respondent’s case originally, the question before us on
remand from the Attorney General is whether there is a basis, notwithstanding the statutory changes in the law adverse to the respondent’s being considered for relief under section 212(c), that compels a result other than outright
dismissal of his appeal? I conclude that there is such a basis and that it is
found within our equitable authority to resolve the respondent’s appeal on
remand from the Attorney General.
    Generally speaking, it is true that according to the Attorney General’s
decision on certification in Matter of Soriano, 

 (BIA 1996;

                                      205
Interim Decision #3262


A.G. 1997), any alien whose application for a waiver under section 212(c) is
pending or might be made is precluded from seeking such relief unless he or
she falls within the extremely limited group of persons subject to a conviction
for a single crime of moral turpitude, or two convictions in which both crimes
are not crimes of moral turpitude as then-defined by the statute. See section
440(d) of the AEDPA. Unless limited by express statutory language or found
to have an impermissible retroactive effect, the rule that we adjudicate a case
according to the law in effect at that time applies when such an application is
to the respondent’s disadvantage no less than it applies when such application works to his advantage.
    Our decision in Matter of Cazares was rendered in early 1996, however,
prior to the enactment of the AEDPA. Although Matter of Cazares was certified to the Attorney General, the applicability of a precedent decision is not
stayed or diminished by the fact of certification. It is possible that certain
respondents, benefitting from our precedent decision, may not have been
foreclosed, in the first instance, from submitting and obtaining favorable
adjudications of applications for relief under section 212(c). Others who
were able to submit their applications, but whose cases were not concluded
prior to enactment of section 440(d) of the AEDPA, ultimately were subject
to denial of their applications under Matter of Soriano, supra. This latter
group might be viewed as having had a fair opportunity to seek section 212(c)
relief according to the terms of the then-existing statute and our decision in
Matter of Cazares, supra, but as later being divested of their eligibility for
such relief because of a change in the statute determined by the Attorney
General not to be retroactive or to have retroactive effect.
    Those are not the circumstances in the respondent’s case. In his case, the
respondent was foreclosed from applying for relief some 2 or more years earlier, under the prior, far more generous and forgiving version of the statute in
terms of the scope of grounds of deportability that could then be waived.
According to the law of the circuit within which his case arose, he was entitled to apply and be considered for a waiver before the recent regulatory or
statutory changes took place. Denial of the opportunity to apply for relief for
which he was eligible under the statute deprived him of the opportunity to
present his evidence and obtain a reasoned decision concerning his eligibility
and entitlement to a waiver as a matter of discretion.
    As I stated in my recent dissent in Matter of Yeung, supra, were we writing
on a clean slate in a case in which the respondent had first asserted eligibility
for the waiver in question during an exclusion or deportation proceeding initiated after the amended statute took effect, we would be required to apply the
statute strictly according to its terms and find him ineligible for a waiver
under current the section 212(c). However, we are addressing a case in which
a procedural defect of constitutional proportion was later found, pursuant to
the authority of the court of appeals, to have improperly prevented the
respondent from applying for a form of statutory relief.

                                      206
                                                           Interim Decision #3262


    The intervening legislation in no way supersedes the holding of the Court
of Appeals for the Ninth Circuit that the former section 212(c) had been erroneously interpreted by the Board in violation of the plain terms of the statute.
The enactment of the AEDPA does not change the fact that our prior interpretation of section 212(c) of the Act violated the respondent’s right to due process of law under the Fifth Amendment by precluding him from an
opportunity to obtain relief for which he was statutorily eligible. Similarly,
the intervening legislation does not change the fact that, prior to its enactment, the respondent was prejudiced by an error of constitutional magnitude.
    According to the substantive determination made by the court of appeals
in Ortega-Robles v. INS, supra, the opportunity or right to apply for a section
212(c) waiver under the statute then in existence should have been available
to the respondent. That he was denied the opportunity to seek such a waiver
is not merely harmless error. See Colindres-Aguilar v. INS, 

(9th Cir. 1987) (finding prejudice not harmless where counsel could have
better marshaled facts in asylum case and sought voluntary departure); see
also Rabiu v. INS, 

 (2d Cir. 1994) (holding counsel’s failure to
file an application resulting in loss of an opportunity for a hearing to constitute ineffective assistance and a due process violation which is inherently
prejudicial); Waldron v. INS, 

 (2d Cir.)(holding no showing
of prejudice required where a fundamental right is at stake), cert. denied, 

 (1994); Sewak v. INS, 

 (3d Cir. 1990)
(rejecting harmless error doctrine where respondent was denied his fundamental statutory right to receive notice of hearing); Shahandeh-Pey v. INS,

 (7th Cir. 1987) (finding harmless error doctrine not to require
proof that claim would have succeeded on the merits so long as violation had
the potential for effecting the outcome of the hearing).
    From its inception, the Board has embraced the concept of granting equitable relief nunc pro tunc, finding it to be appropriate and within the Attorney
General’s authority to extend in cases involving exclusion and deportation.
In Matter of L-, 

, 5 (BIA, A.G. 1940), the first case decided by
the Board under the delegated authority of the Attorney General, the Attorney General found that it would be capricious to conclude that “the technical
form of the proceedings” would determine the result, and instructed that consideration for relief in deportation proceedings should relate back to the time
at which the respondent was readmitted notwithstanding his conviction. The
Attorney General held that the respondent should “be permitted to make the
same appeal to discretion that he could have made if denied admission in
1939.” 

.
    The term “nunc pro tunc” is defined as a “phrase applied to acts allowed to
be done after the time when they should be done, with a retroactive effect,
i.e., with the same effect as if regularly done . . . . Nunc pro tunc signifies now
for then, or, in other words, a thing is done now, which shall have same legal
force and effect as if done at time when it ought to have been done.” Black’s

                                       207
Interim Decision #3262


Law Dictionary 1069 (6th ed. 1990); see also Matter of Garcia, 

 (BIA 1996) (Guendelsberger, joined by Schmidt, dissenting).
    As I discussed in Matter of Yeung, supra, nunc pro tunc action has been
taken where “complete justice to an alien dictates such an extraordinary
action” and the “record before us presents many sympathetic and mitigating
factors.” Matter of T-, 

, 413 (BIA 1954) (considering whether
an application filed under the 1917 Act was subject to the terms of the 1952
Act).
    Typically, a procedural error, such as the erroneous denial of an opportunity to apply for an asserted form of relief for which the respondent is eligible, is cured by simply holding a new hearing “in compliance with due
process requirements,” as this remedy restores the wronged applicant to the
position in which he found himself prior to the procedural error. Batanic v.
INS, 

 (7th Cir. 1993); see also Shahandeh-Pey v. INS, supra,
at 1390 (remanding to allow an alien denied the opportunity to present evidence and to “have his day in court” to present all of his evidence in support
of his application for asylum in lieu of deportation).
    When remand for reopening, such as we ordered in our original decision in
Matter of Cazares, does not cure the inequity of the respondent’s earlier
treatment—as it cannot here because of the intervening amendment of the
statute—it is then that we approach the concept of nunc pro tunc relief.
Batanic v. INS, supra (holding that where denial of the right to counsel
deprived the respondent of his right to apply for asylum, counsel’s ability to
protect the respondent’s rights in a reconvened hearing must include the ability to apply for asylum nunc pro tunc because of an intervening change in the
statute). In particular, “when the procedural defect has also resulted in the
loss of an opportunity for statutory relief,” the demands of due process
require more than merely reconvening the hearing. Id. at 667 (emphasis
added). When a violation of due process results in a denial of a fair hearing
on the question of eligibility for relief, the respondent should be afforded the
opportunity for consideration of his claim based upon the law as it existed at
the time he was deprived of his rights. Snajder v. INS, 

, 1208
n.12 (7th Cir. 1994).
    Having been found by the court of appeals to be erroneous, our original
interpretation of the statutory requirements, which was invoked by the Immigration Judge below to deny the respondent his right to apply for section
212(c) relief, resulted in a denial of due process. I therefore cannot accept the
majority’s conclusion in the present case on remand from the Attorney General to be either necessary or proper, but instead to perpetuate the inequity
and unfairness of the treatment the respondent was accorded. The process
due the respondent—an opportunity to present his application for a section
212(c) waiver for adjudication—has not become moot in light of the change
in the law rendering the respondent substantively ineligible for the waiver for
other reasons; instead, the process due the respondent requires that the

                                      208
                                                         Interim Decision #3262


respondent “be given the advantage of the law that existed when his first
hearing was held.” Batanic v. INS, supra, at 668.

                            IV. CONCLUSION
   In conclusion, I note as I did in my dissenting opinion in Matter of Yeung,
supra, that to allow an amendment of the statute to virtually excuse our prior
erroneous interpretation precluding the respondent from applying for available relief from deportation, effectively relieves us of any responsibility for
the resulting procedural defect in the proceedings. What is more, it leaves the
respondent subject to deportation despite the determination of the court of
appeals that has actually been endorsed by our precedent, as well as subsequent legislation and rulemaking. I find it difficult to accept that redress for
violations of due process and fundamental fairness in deportation proceedings should be so vulnerable to the coincidental changes in the law.




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